1. The plaintiff in the suit out of which these two appeals have arisen, prayed for a decree for specific performance of a contract for sale said to have been entered into by defendants 1 to 5 on 3rd Chaitra 1330 B.S. or in the alternative for refund of earnest money and recovery of damages. Defendants 2 to 5 had maliki right in the property which was the subject matter of the contract for sale, to the extent of certain definite shares owned by each of them as a member of a joint Hindu family; defendant l had a meadi ijara right in the property to the extent of the share of defendant 3. Defendant 6 was the karta of the joint family of which defendants 1 to 5 were members, defendant 1 being the mother of defendants 2 to 5. Defendant 7 was an officer of the joint family, estate. Defendants 6 and 7 acted as agents in the matter of the contract for sale, of which specific performance was prayed for by the plaintiff, Defendants 8 to 13 are purchasers from defendants 1 to 5, by kabalas dated 4th Ashar. 1331 of the property in regard to which the plaintiff asked for specific performance, The plaintiff's claim in suit was resisted by all the defendants mentioned above. The contract for sale as alleged by the plaintiffs was denied; it was asserted that defendants 8 to 13 were bona fide purchasers for value, without knowledge or notice of any previous agreement for sale with the plaintiff as alleged by the plaintiff in the suit.
2. The controversy between the parties to the litigation are indicated by the principal issues raised for determination in the suit, which were to the following effect: Was there any contract for sale to the plaintiff Was the, contract legally enforceable and capable of specific performance? Had defendants 6 and 7 any authority to enter into any contract Did defendants 1 to 5 approve of or ratify the contract Had defendants 8 to 13 notice of the contract? Are defendants 8 to 13 bona fide purchasers for, value? The learned Subordinate Judge, Second Court, Sylhet, in whose Court the suit was instituted, passed a decree in the suit in these words:
The suit be decreed with costs, decree against defendants 1 to 7 being for Rs. 350 and against all the defendants for costs, prayers ka to chha of the plaint and claim for Rs. 3000 as compensation beings disallowed and interest running at 6 per cent per annum on decretal amount till realization.
3. The prayers ka to chha, it may be mentioned, related to specific performance. On appeal by the plaintiff, the learned District Judge of Sylhet modified the decree of the trial Court, and passed a decree directing that the suit be decreed as against defendants 2, 4, and 5 to 13, and that the plaintiff be allowed specific performance as against defendants 2, 4, 5 and 8 to 13, of the agreement dated 3rd Chaitra 1330. The kabalas dated 4th Ashar 1331, in favour of defendants 8 to 13 were declared invalid, in respect of the shares of defendants 2, 4 and 5. The decree further directed the execution of a fresh kabala in respect of the shares of defendants 2, 4 and 5, in favour of the plaintiff. The plaintiff's suit was dismissed as against defendants 1 and 3. Defendants 2 and 4 to 13, as well as the plaintiff, have appealed to this Court. The defendants' appeal being appeal from Appellate Decree No. 851 of 1929 while the appeal by the plaintiff is appeal from Appellate Decree No. 898 of 1929. In view of the questions raised in these appeals the findings arrived at by the learned District Judge on appeal in his elaborate and careful judgment may be briefly referred to. The learned Judge held upon the evidence before him, that defendants 6 and 7, on behalf of defendants 2 to 5, entered into a contract with the plaintiff for the sale of the property, and that the agreement was concluded on 3rd Chaitra 1330. Defendants 6 and 7, the agents, were, according to the learned Judge's finding, acting beyond the scope of their authority, but the agreement was ratified by defendants 2, 4 and 5, but not by defendants 1 and 3. On the question of the position of defendants 8 to 13 the District Judge has held that on the facts and in the circumstances mentioned by him the contract could be specifically enforced against them.
4. One of the points raised in the appeal by defendants 2 and 4 to 13 is with reference to the decision arrived at by the Court of appeal below, that defendants 8 to 13 were persons against whom the plaintiff's contract could be specifically performed; and mention has to be made of the reason given by it in this behalf. The learned Judge has made mention of evidence showing that these defendants had information of what was taking place in regard to the contract for sale, to the plaintiff, and of evidence showing that the plaintiff's agent having asked them not to buy the property in question. The learned Judge has refused to disbelieve plaintiff's evidence on the point; and has hold that even if they were only aware of the fact that negotiations for the sale of the property was in progress, between defendants 1 to 5 and the plaintiff's agent, that should have put them on their guard, and they should have made necessary inquiries as to whether any agreement to sell the property had been definitely concluded. This defendants 8 to 13 did not do. There can be no doubt that the learned District Judge has rightly directed himself in coming to the decision on the question whether defendants 8 to 13 were or were not bona fide purchasers for value, and whether or not they had knowledge or notice of the previous contract with the plaintiff. It is well settled now that when a person claims to be a transferee for value without notice of the original contract, the burden lies upon him to prove that he fulfills that character. If defendants 8 to 13 chose to make no inquiry, they could not claim to be transferees without notice; 'they could not predicate of themselves' that they were persons who claim without notice of the contract of 3rd Chaitra 1330, with the plaintiff: see in this connexion, Baburam Bag v. Madhab Chandra Pollay (1913) 40 Cal 555. The decision of the learned Judge, in the Court of appeal below, that the contract could be specifically enforced against defendants 8 to 13, is upon the findings arrived at by him correct and must be affirmed.
5. On the question of ratification of the contract for sale to the plaintiff by defendants 2, 4 and 5, and not by defendants 1 and 3, which was raised in the appeal by the plaintiff, there is a clear finding of fact arrived at by the learned District Judge. It was pressed before us that there has been an inaccuracy in quoting from the deposition of one of the witnesses for the plaintiff, examined on this part of the case, inasmuch as the witness stated that he 'wrote' the document evidencing the sale to the plaintiff, at the bidding of defendants 1 to 5, and not that he 'read out' the same, as mentioned in the judgment of the Court of appeal below. It has also been urged that upon the findings arrived at by the lower appellate Court, there was ratification in law by defendants 1 and 3, on the evidence that was common to the defendants 1 to 5. We are unable to say that the inaccuracy in quoting a passage from the deposition of a witness, to which reference has been made above, in any way affects the findings and the conclusion arrived at by the learned Judge in the Court below, on the question of ratification. Prom the facts and circumstances to which reference has been made in the judgment of the Court below, the conclusion followed that the defendants 1 and 3 had not ratified the contract. It is impossible upon the findings arrived at by the lower Court, to hold in favour of the plaintiff, that defendants 1 and 3 had ratified the contract; and upon those findings there appears to be no justification for the contention that there was ratification in law, seeing that upon the facts proved in the case, and upon the inference drawn from such facts, there was no ratification of the contract, either express or implied, so far as defendants 1 and 3 were concerned.
6. The question whether the contract of 3rd Chaitra 1330, was legally enforceable, and the question whether the contract was capable of specific performance, were raised before the Courts below, and have been urged in the appeal by defendants 2 and 4 to 13. The plaintiff who had previously acquired some share in the property in suit, was desirous of securing other shares in the same. With a view to this, there were negotiations with defendants 2 to 5 for purchase of the shares of the property owned by them; defendant 6 who had sold his own share in the property to the plaintiff, negotiated as agent of defendants 2 to 5. Upon the finding arrived at by the Court below, the agents (defendants 6 and 7) had gone beyond the scope of their authority, but defendants 2, 4 and 5 had subsequently ratified the contract entered into by the agents on their behalf; defendants 1 and 3 however did not ratify the contract. Thus the contract sought to be specifically enforced was not treated by the parties concerned as one entire contract indivisible in its nature: it was not also a contract entered into by a cosharer of joint property undertaking to obtain the consent of the other cosharers in respect of joint property. It may be noticed that the nature of a contract, whether it was divisible or not, must be determined upon the facts and circumstances of each particular case; and the question was essentially a question of fact. The contract entered into by the agents in the case before us, was one, in regard to the distinct and different shares of cosharers defendants, 2 to 5, in the joint property, and in respect of which shares only, taken separately, there could be a conveyance of title, so far as any of the cosharers was concerned. There was the contingency of any of the cosharers not agreeing to convey his own share; and subsequent events showed that such contingency did happen. The position then was this: the agents were negotiating on behalf of each of the cosharers, defendants 2 to 5, for the sale of the joint property; some of the parties concerned, defendants 2, 4 and 5, ratified the action of the agents; defendant 3 as well as defendant 1 did not ratify the same.
7. Defendant 1, it must be remembered, was not a cosharer, but was only an ijaradar of the share of defendant 3 in the joint property. The contract therefore in the case before us, was one that was, on the face of it, and in view of the conduct of the parties and the intention to be gathered from such conduct, divisible in its nature; and was, in point of fact separated and divided by defendants 2, 4 and 5 ratifying the contract, and by the refusal of defendant 3 to do so, in respect of his own share in the joint property. It was therefore an agreement between the plaintiff and defendants 2, 4 and 5 for sale, and does not come within the general rule that where a person is jointly interested in an estate with another person, and purports to deal with the entirety, specific performance will not be granted against him as to his share. Very great reliance has been placed by the learned advocate for defendants 2 and 4 to 13, appellants, on the pronouncements of their Lordships of the Judicial Committee of the Privy Council, in the case of Rai Promotha Nath Mittra v. Gostha Behari Sen , as also upon the rule laid down by their Lordships in Graham v. Krishna Chunder Dey , in support of the case of these defendants, that there was no concluded contract in the case before us, which could be specifically enforced by the plaintiff, in view of the non-ratification of the contract by defendants 1 and 3; and that the plaintiff not having relinquished his claim to further performance and all right to compensation, was not entitled to a decree for specific performance. It was urged that there was no mutuality in the contract of which specific performance was sought, as defendants 2, 4 and 5 could not insist upon the enforcement of the contract.
8. The questions thus raised do not in our judgment, arise for consideration in the case before us, in view of the nature of the contract entered into. It cannot be said in this case, as it was made out in Rai Promatha Nath Mittra's case AIR 1932 PC 43 that the contract was on the footing that all the owners of the property would consent to the sale. The agents acting on behalf of defendants 2 to 5 in this base were negotiating for the sale to the plaintiff, of the share of the joint property, owned by each of these defendants Separately; and defendant 3 refused to ratify the act of the agents, so far as his own share was concerned. In Graham's case, their Lordships of the Judicial Committee definitely held that in India Sections 14 to 17, Specific Relief Act, 1877, constituted a complete Code, so far as specific performance of part of a contract was concerned, and their Lordships laid down the law in a case where there was the question of a part performance of a contract, the vendor having failed to make title to one of the two items of property agreed to be sold. The contract was not one in regard to which it could be said that one of the items of property stood on a separate and independent footing, so as to be within the terms of Section 16, Specific Relief Act. In the case before us, the separate shares of defendants 2 to 5 in the joint property stood altogether on an independent footing, and the plaintiff and the agents on behalf of these defendants were negotiating for the sale of these separate shares of these defendants in the joint property. The case placed before the Court by the plaintiff, regard being had to the averments made in his plaint, was one to which Section 15, Specific Relief Act, could not have any application; and the rule laid down by the Judicial Committee, in Rai Promotho Nath Mittra's case AIR 1932 PC 43 that unless there was relinquishment by the plaintiff of claims, as provided by that section, there could be no decree made for specific performance, in favour of the plaintiff, could not therefore apply.
9. The contract in the case before us, was, after ratification, a concluded contract in regard to the shares of defendants 2, 4 and 5, and as such, specific performance could be granted of the same. The decision of the learned District Judge, in the Court of appeal below, in favour of the plaintiff, is, in our judgment, correct, and it is in consonance with the principles underlying the decisions of the Judicial Committee of the Privy Council in the cases referred to above, upon which reliance has been placed on behalf of defendants 2 and 4 to 13 in the suit. In the result both the appeals are dismissed with costs. The decision and decree passed by the learned District Judge in the Court of appeal below are affirmed.